- (1.) D. P. Singh, J. Heard Counsel for the parties.
(2.) THIS writ petition is directed against an order dated 26-6- 2001 allowing an application under Section 33-C (2) of the Industrial Disputes Act, 1947. Swadeshi Cotton Mills Company Limited (hereinafter referred to as Company) owned a Cotton Mill known as Swadeshi Cotton Mills, Kanpur (hereinafter referred to as Mills ). The Company also owned majority of shares in Swadeshi Mining and Manufacturing Company Limited (hereinafter referred to as Manufacturing Company) and was controlling and managing a Sugar Mill at Gorakhpur. The Mills were nationalized under Central Act No. 30 of 1986 with effect from 1-4-1985. The Mills after being vested in the Central Government was made a unit of the National Textile Corporation, U. P. , Limited, Kanpur (here-in-after referred to as Corporation) and in pursuance of Section 12 of the aforesaid Act, the employees of the Mills became employees of the Corporation with the same right and interest. Prior to nationalization of the Mills, the owners had separate Board of Directors for the Mills and the Manufacturing Mill though the registered office of both was, situated at Swadeshi House, Civil Lines, Kanpur. A dispute by the owners of the Company with regard to the Manufacturing Mill was settled by the Apex Court which held that in view of the fact that the major holding in the Mills was of the Company which had been nationalized, the Corporation stepped into its shoes as owners. The Manufacturing Mill was wound up vide order of the Company Judge dated 29-9-1999. The respondent workman on 3-6-2000 made an application under Section 33-C (2) before the Labour Court, inter-alia, claiming to be a Assistant Accountant in the Mills from 1971 sought difference in wages with regard to the 4th and 5th Pay Commission with effect from 1-1-1986 and 1-1-1996, respectively, which, according to him amounted to a sum of Rs. 2,48,019/ -. The petitioner raised objections that the respondent workman was an employee of the Manufacturing Mill and not of the Mills and since he did not become an employee of the Mills under Section 12 of Act No. 30 of 1986, he was not entitled to the alleged revision of 4th and 5th Pay Commission. It was also urged that the question whether the 4th nor 5th Pay Commission was applicable to the employees of the Corporation itself had to be adjudicated and since these issues were raised for the first time without there being any prior adjudication, the application was not maintainable. It was further asserted that even though the workman was appointed in 1971 in the Mills, he was transferred by the private owners in June, 1977 to the Manufacturing Mill but he continued to discharge his duties as an employee of the Manufacturing Mill in the Swadeshi House itself. It was also urged that since the entire documents of the Manufacturing Mill had been taken over by the Official Liquidator, fresh appointment was given to the employees, including the workman in the Manufacturing Mill vide appointment letter dated 11-7-1992 and this appointment and conditions mentioned therein were duly accepted by the workman.
(3.) THE Labour Court held that no documentary evidence had been filed to show the transfer of the workman to the Manufacturing Mill and thus it held that the appointment of the workman in the Mills continued. It also relied upon certain documents to hold that the workman was an employee of the Mills and on these findings it allowed the application. Learned Counsel for the petitioner has firstly urged that since the claim is not based upon any existing right, power under Section 33-C (2) could not have been exercised and the Court has arrogated to itself the power of adjudication of the said right which was in the exclusive domain of Section 4-K of the Act. However, learned Counsel for the workman has urged that the Labour Court can determine incidentally whether the workman was an employee of the Mills or Manufacturing Mill and the objection of the petitioner was not bona fide.;